Many participants were not shy in telling the NEB panel they had little faith in the process and feared it was headed for a 'predetermined outcome'

By Douglas Quan in Nanaimo, B.C. and Maura Forrest in Ottawa

In a drab, windowless room at the Vancouver Island Conference Centre this week, at the tail end of a weeks-long series of hearings that some have called a sham, there was a rare break from the formal proceedings.

Three National Energy Board (NEB) panel members assigned to gather oral evidence from Indigenous leaders about the possible effects of marine traffic related to the controversial Trans Mountain pipeline expansion were asked to assemble in the middle of the room to watch members of the nearby Snuneymuxw First Nation re-create a salmon-honouring ceremony.

Elder Gary Manson, covered head-to-toe in regalia and his face painted with ochre, delivered a solemn monologue that touched on his love of the ocean, his spiritual connection to killer whales and his fears about what could happen in the event of a tanker spill. At one point, he turned to introduce his young grandchildren and said he was compelled to share a phrase in his language — “thi qwum.”

“Have pity,” he said.

One of the NEB panelists bowed her head and appeared to wipe away a tear.

But this moment of quiet rapture and human connection was, according to observers and transcripts of previous hearings, more the exception than the rule during three weeks of oral testimony that concluded Thursday. In fact, many participants were not shy in telling the NEB panel they had little faith in the process and feared it was headed for a “predetermined outcome.”

Have pity

That the hearings were happening at all was the result of an August ruling from the Federal Court of Appeal which overturned the government’s approval of a pipeline expansion that would triple the amount of diluted bitumen it carries from Alberta to B.C. The government had to redo its consultations with First Nations, the court ruled, because the first round hadn’t been done in a meaningful way. The court also found the NEB had made a “critical error” when it recommended the government proceed with the project without taking into account its possible impact on the marine environment.

As part of its response, the government told the NEB to draw up a new report with a focus on the impact of increased tanker traffic, particularly on the southern resident killer whale and other species at risk. It set a deadline of Feb. 22, 2019. And so the NEB panel set up meetings in Calgary, Victoria and Nanaimo to hear oral traditional evidence from Indigenous leaders.

Complaints about the process soon followed. Why weren’t any of the hearings being held in Vancouver? How was it possible to cover adequately in the given two-hour time limits their spiritual and cultural connections to the ocean?

“I know that this is just a formality. This is kind of like checking off that little box that’s there that we were consulted,” Elder Paula Giroux of the Driftpile Cree Nation told the panel in Calgary. “I hope that my words are not sitting on a shelf collecting dust like a lot of First Nations words do.”

Members of the Squamish Nation were upset the panel declined their invitation to attend a sacred ceremony in a longhouse so they could see first-hand their cultural and spiritual practices.

“When they’re engaging with First Nations, they need to do it in good faith and it needs to be meaningful,” Dustin Rivers, a Squamish Nation councillor who goes by his traditional name Khelsilem, told the National Post.

The new hearings, he said, were reminiscent of the initial consultations when “they met with us, they listened to us, but then nothing changed.”

A salmon ceremony is performed by members of the Snuneymuxw First Nation before an NEB panel in Nanaimo, B.C.

Adam Olsen, a B.C. MLA and member of the Tsartlip First Nation, testified in Nanaimo that the evidence-gathering process smacked of being “watered down.”

“It’s actually quite cute, I called it the Hilton Hotel version of oral traditional evidence — the conference centre, the sterilized environment that we’re in today,” he told the panel.

And following a special sitting of the Assembly of First Nations chiefs in Ottawa this week, several leaders issued a blistering news release demanding the government “engage in real consultation that listens to Indigenous peoples.”

NEB officials have said they were unable to find a suitable venue in the Vancouver area to hold hearings in November and December. While acknowledging that travelling from the mainland to the island was a bit of drag, they didn’t feel it placed an unreasonable burden on mainland First Nations. Plus, they said, interveners had the option to provide oral evidence through recorded audio or video.

It’s actually quite cute, I called it the Hilton Hotel version of oral traditional evidence

Given the number of people wishing to appear before the panel, the NEB said it had to set a cap of two hours for each party to testify. And, NEB panel members said, while they appreciated the Squamish Nation’s invitation to visit a longhouse, if they accepted one request they would have to do the same for all other requests.

An official with Natural Resources Canada told the Post this week that Ottawa was “definitely hearing the concerns,” but stressed that the consultations didn’t stop with the NEB hearings and that the government is separately planning further conversations with Indigenous communities in the months ahead.

Former Supreme Court justice Frank Iacobucci will lead consultations with all 117 Indigenous groups affected by the project. Those consultations have no fixed end date, and are just getting underway, said the official, who agreed to speak only on background. Iacobucci is now holding roundtables to sort out what the process will look like, and consultation teams are beginning to schedule meetings with interested communities.

“As soon as you set a deadline, you’re kind of predetermining … the issue,” the official said. “We’ve been very clear that the outcome is not predetermined.”

Chris Bloomer, head of the Canadian Energy Pipelines Association in Calgary, said it is the hope of industry that the government doesn’t allow these consultations to stretch on in an open-ended fashion, arguing there need to be time constraints on the process.

“Somebody’s going to have to step up and say, ‘No, that’s sufficient time, we’re not going to keep it open-ended.’ Because open-ended doesn’t serve anybody’s purposes.”

Oil and gas lobby groups have been increasingly critical of the regulatory approval process in Canada, saying that a failure to build major pipelines has restricted foreign investment into the industry.

Bloomer said pipeline opponents have continued to delay approvals through regulatory and legal means, sometimes pushing project start dates years beyond their initial targets. He said many other jurisdictions in the world — not just Canada — also aim to enforce regulatory timelines for major projects.

“What we’ve experienced is that within these processes, there’s simply too many ways to stop the clock,” he said. “That has not created the clarity and certainty that we need.”

Meanwhile, the government of Alberta and other proponents of the pipeline expansion have seized on the figure of $80 million, the amount of money they say Canada is losing every day the pipeline expansion isn’t completed.

Premier Rachel Notley in a Postmedia file photo.JASON FRANSON /
THE CANADIAN PRESS

Not all Indigenous leaders who appeared before the NEB panel over the past three weeks were opposed to the project.

“I think with proper technology that we can get this pipeline built and also with proper monitoring. We want to monitor what’s going on here in our territories,” said Chief Calvin Bruneau of the Papaschase First Nation at the Calgary hearing. “And also we want to be involved in the construction of this thing.”

In Victoria, members of an Indigenous advisory committee that includes Cheam First Nation Chief Ernie Crey, a vocal supporter of the project, spoke about the need for Indigenous people to be involved in monitoring and spill response, if the pipeline is built.

“By not including the Indigenous voice in some of these plans and in some of these responses, you’re missing a wealth of technical, detailed knowledge on a very specific place that needs that protection,” said Caitlin Kenny, chair of the marine subcommittee.

Other Indigenous leaders, however, expressed grave concern about the projected increase in marine traffic and spoke at length about their ties to salmon and clean water.

“I’m really not sure if you folks can even conceive of that connection that we have with those salmon people, that it’s more than a protein, it’s more than a healthy oil,” Chief Tyrone McNeil of the Sto:lo Tribal Council told the panel. “It’s in our DNA. It’s in our spirit.”

Steven Teed, a councillor with the Adams Lake Indian Band, implored the panel to “remember that not if, but when an incident occurs in our waters — orcas, gone. Salmon, gone. Clean water, gone. Our culture, gone. Our people, gone.”

Chief Wayne Sparrow of the Musqueam First Nation, whose reserve sits within Vancouver city limits, told the panel there have already been “close encounters” between fishermen and large freighters and worries that smaller fishing boats could get “swamped” — or capsized — by big wakes.

Despite the federal government’s pledge to protect Canada’s coasts through its $1.5 billion ocean protection plan, Sparrow said the Musqueam community has been provided few tools to respond effectively to an oil spill emergency that spreads into its territory. The only thing they’ve received so far is a trailer containing a boom that can be deployed in the water to absorb the oil. But the boom stretches for only 50 yards, he testified.

“When our band members are saying, ‘If a spill happens, what’s going to happen?’ and we look pretty foolish as political people when I can only respond, ‘I don’t know,’ because I don’t know,” Sparrow said.

Asked what impact an oil spill would have on the people of Snuneymuxw, Manson, the elder, said it would be “unimaginable.”

“I would carry that sadness to my grave. … I can’t imagine it. It would be — for me, it would be like losing my children.”

Similarly, if the killer whale was to disappear from coastal waterways, Manson, who brought to the hearing an intricately carved stick with a killer whale at the top, said he would grieve “a long, long time.”

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